On December 21, 2004, counsel for parties in the Gaskin case signed a provisional settlement agreement in this class action lawsuit, which was filed in June 1994.Under this agreement, the Department of Education will undertake a series of reforms in special education processes and procedures including data collection, compliance monitoring, plan approval, IEP format and complaint resolution.

Gaskin

Gaskin v. Pennsylvania Department of Education

(United States District Court, Philadelphia)

Summary of Principal Provisions in the

Proposed Settlement Agreement

Introduction

On December 21, 2004, counsel for the parties in the Gaskin case signed a provisional settlement agreement that, if approved by the court, will end ten years of litigation over Commonwealth programs for the education of schoolchildren with disabilities.

Gaskin is a class action lawsuit brought on behalf of Pennsylvania public school students with physical, behavioral and developmental disabilities. The action asserts violations of federal statutes protecting the rights of children with disabilities, principally the Individuals with Disabilities Education Act. The plaintiff class representatives are twelve significantly disabled public school students. Other plaintiffs include their parents and eleven national and state organizations that advocate for the rights of disabled persons. The defendants are the Pennsylvania Department of Education, various PDE officials, and the members of the Pennsylvania State Board of Education.

The lawsuit, originally filed in 1994, alleges that students with disabilities have been denied their federal statutory right to a free appropriate public education in regular classrooms with necessary supplemental aids and services. In particular, the plaintiffs allege that PDE has systematically failed to enforce the provisions in federal law requiring local schools and school districts to offer a full continuum of support services allowing disabled children to be educated in regular classrooms.

The parties and their lawyers have engaged in years of protracted discovery. Each side named expert witnesses, took dozens of depositions, and produced thousands of pages of documentary evidence. The plaintiffs commissioned a survey of special education practices in ten Pennsylvania school districts, and that survey was the subject of expert testimony on both sides.

Following the close of discovery in the summer of 2003, the parties filed cross-motions for judgment in their favor. Judge Eduardo Robreno heard argument in March 2004. A turning point in the Gaskin case came that month, when Judge Robreno, in lieu of ruling on pending motions, elected instead to place the case in suspension and directed the parties to engage in court-supervised mediation. Judge Robreno appointed retired Federal District Court Judge Louis Bechtle as mediator, and Judge Bechtle oversaw settlement negotiations during the summer and fall of this year—negotiations that resulted in the proposed settlement agreement executed by counsel for the parties on December 21.

The Architecture of the Proposed Settlement Agreement

The proposed settlement agreement is 46 pages long. Its central feature is a lengthy section titled “Settlement Terms, Conditions, and Undertakings.” In this section (which comprises 30 of the 46 pages in the proposed agreement), PDE pledges to undertake a series of reforms in its special education processes and procedures. We address herein the principal provisions in this section of the proposed settlement agreement.

Principal Provisions in the Proposed Settlement Agreement

Advisory Panel. The proposed settlement agreement establishes a new body—the “Bureau Director’s Advisory Panel on Least Restrictive Environment Practices”—to provide systematic input to PDE and the Director of PDE’s Bureau of Special Education on technical, programmatic, and operational issues affecting special education programs in Pennsylvania. The Advisory Panel will consist of fifteen members, twelve of whom will be named by the advocacy organizations that are plaintiffs in the Gaskin case. The other three members will be appointed by the Department of Education’s Director of the Bureau of Special Education. Advisory Panel members will be selected to reflect the population of children served in special education in Pennsylvania with respect to race, ethnicity, cultural characteristics, geography, and age. The Panel will meet quarterly, and will have access to PDE-generated data on special education enrollment, inclusion, and other pertinent subjects.

IEP Format. Under the proposed settlement agreement, PDE will make agreed-upon modifications to the annotated IEP format posted on the Department’s Web site. The new format will be explained in a written guidance to be provided to all school districts shortly after the effective date of the proposed settlement agreement.

Compliance Monitoring. The proposed settlement agreement makes significant changes in PDE’s special education monitoring practices. Most significant is the creation of a new, multi-layered monitoring program called “LRE monitoring” (the abbreviation stands for “least restrictive environment,” a term borrowed from the federal Individuals with Disabilities Education Act) to ensure that districts comply with IDEA and other federal and state laws protecting the rights of students with disabilities. Under the new LRE monitoring program, all school districts in the Commonwealth would receive an “LRE index” score based on data factors relating to the success they have achieved in including special education students in regular education classrooms for all or part of the school day.

The twenty districts with the lowest LRE index scores would be subject to “Tier One LRE Monitoring”, which would feature on-site visits by a PDE-appointed monitoring team and the preparation of a corrective action plan with interim reporting and monitoring obligations.

·All districts with LRE index scores in the bottom ten percent of Pennsylvania’s 501 school districts (except those already subject to Tier One LRE Monitoring) would be placed on a warning list and would be subject to Tier Two LRE Monitoring. Districts would be required to attend PDE-sponsored training and technical assistance programs and submit a corrective action plan addressing areas identified for improvement.

·All districts with LRE index scores in the bottom fifty percent of Pennsylvania’s 501 school districts (except those already subject to Tier One and Tier Two LRE Monitoring) would be placed on an alert list and would be subject to Tier Three LRE Monitoring. Under Tier Three, the district would receive a communication from PDE stating that the district is in the bottom half of all districts in terms of LRE data analysis, identifying areas in need of improvement, and describing PDE resources available to the district to assist in improvement.

In addition, districts in Tier One or Tier Two LRE Monitoring would be subjected to new requirements as part of PDE’s regular cyclical monitoring of all 501 Pennsylvania districts. As part of the cyclical monitoring process, districts in Tier One or Two Tier would be obligated to provide data on inclusion practices and undergo specific staff training designed to target the particular LRE deficiencies identified in compliance monitoring.

Complaint Resolution. The proposed settlement agreement requires PDE to investigate complaints from parents concerning the alleged inadequacy of district special education inclusion practices. As part of the investigatory process, PDE must use its best efforts to interview the student, the student’s parents or guardians, and a reasonable number of witnesses. If PDE finds that a district has violated an individual student’s right to receive supplementary aids and services in a regular education class, or where such a violation has been established after a due process hearing, then PDE must determine during the district’s next compliance monitoring whether the district corrected the violation, not only for the student who was the subject of the complaint but for similarly situated students.

Plan Approval. Over a three-year period, PDE’s special education planning cycle would be synchronized with its compliance monitoring cycle. The goal would be to reduce the paperwork and planning burden on districts by allowing them to make a single submission satisfying both their planning and their monitoring obligations.

Training and Technical Assistance. PDE’s Bureau of Special Education will provide on-site training, technical assistance and professional development to school districts for the purpose of building local capacity in providing individualized supplementary aids and services enabling students with disabilities to be educated in regular education classrooms. PDE will provide supports which may include a “mini-grant” program under which funds will be set aside to support school district initiatives that use training and technical assistance to improve their inclusion practices.

Advocacy. PDE will endorse a grant proposal seeking funding for an inclusion program to be operated by one or more advocacy organizations.

Settlement Mechanics

The proposed settlement agreement must be approved by the court before it becomes effective. The parties expect the court to hold a hearing in Spring 2005 in Philadelphia. Once the court approves the proposed settlement agreement, then the agreement will immediately go into effect and will remain in force for a period of five years. The agreement provides of a multi-tiered system of dispute resolution should interpretive or compliance issues arise while it is in force.

To repeat the point, none of the changes described in this paper will go into effect until the court approves the proposed settlement agreement, and court approval is not expected until the spring of 2005 at the earliest.

Any questions concerning the Gaskin case or the provisions in the proposed settlement agreement should be addressed to the Office of Chief Counsel at PDE. The Bureau of Special Education will be working with the Office of Chief Counsel to outline next steps regarding awareness and development of the processes and procedures that will need to be put in place to implement the agreement. Any questions or recommendations in that regard should be shared with the Bureau of Special Education.